Of the Chief Justice's age

The order that a two-member Bench of the Supreme Court passed on November 27 in a contempt proceeding relating to allegations about the age of Chief Justice A.S. Anand has only served to accentuate public misgivings.

THE controversy stirred up by a document annexed to Ram Jethmalani's book Big Egos Small Men has assumed serious proportions. The document in question, dated September 4, 2000, was issued by S. Behr of the Bar Examination Records of the General Co uncil of the Bar of the United Kingdom and addressed to Sohal & Co., a firm of solicitors in the U.K. It stated thus:

"To Whom It May Concern:ADARSH SEIN ANAND

This is to certify that the above was enrolled as a Student Member of Inner Temple on 4th January, 1962 and, at that time, gave his year of birth as 1934."

This document generated a lot of interest because Justice Anand's declared official date of birth is November 1, 1936 and if his year of birth indeed was 1934, he would have reached the age of superannuation in 1999. This document was picked up by a Chen nai-based advocate, S.K. Sundaram, who had in 1991 filed a writ petition in the Madras High Court seeking an investigation into the question of Justice Anand's age. Recently he sent a telegram to the Chief Justice of India. This telegram, couched in the most objectionable terms, asked the Chief Justice to step down on the basis of the allegation that he had attained the age of superannuation. Sundaram further threatened that if that was not done, he would be constrained to move a criminal court for the offences of cheating, criminal breach of trust and forgery for falsification of age. Sundaram also threatened that in case the Chief Justice did not resign, he would file a writ of quo-warranto and seek a direction to pay a sum of Rs.3 crores for 'usurpi ng' the office of the Chief Justice after attaining the age of superannuation.

The Chief Justice directed this telegram to be placed before a Bench of the Supreme Court consisting of Justices K.T. Thomas and R.P. Sethi, who on November 7 suo motu issued notice for criminal contempt to Sundaram. The court, while issuing the notice, also asked the Solicitor-General of India, Harish Salve, to assist the court in the matter.

On November 21, Sundaram appeared in court and sought more time to file an affidavit in the matter and four weeks' time to file a proper affidavit in reply to the contempt notice. He also said that he was a "heart patient". The court, however, told him t hat he could not be given any more than six days' time and that he must file his reply to the contempt notice not later than November 27, when the case would be taken up again.

On November 21, Solicitor-General Salve filed in court a compilation of certain documents which included a copy of a criminal complaint filed by Sundaram against the Chief Justice before the Chief Metropolitan Magistrate, Chennai. The main basis of Sunda ram's complaint was the document issued by the General Council of the Bar on September 4, 2000. On the basis of this document, Sundaram alleged that the Chief Justice had declared his year of birth as 1934 and, therefore, wanted action for criminal breac h of trust, cheating and forgery to be taken against him. On November 10, the Metropolitan Magistrate dismissed this complaint on the ground that there was no sufficient ground to proceed further in the matter.

Salve also produced in court on November 21 the copy of a letter dated November 20 written by Niall Morison, Chief Executive of the General Council of the Bar, in which he said that the information provided by Behr regarding the year of birth of the Chie f Justice "is based on records that we hold and which were inherited by us in 1996 from the Council of Legal Education when the General Council of the Bar assumed responsibility for regulatory matters in these areas. We believe that the information provi ded to the Council of Legal Education in respect of the day of birth was provided by the Inner Temple."

Morison added that "according to the original documents produced by the Sub Treasurer of the Inner Temple at the meeting with you on 16th November, 2000, the date of birth of Dr. Anand given in those documents was 1 November, 1936. It would appear theref ore that the information on the date of birth given by Mr. Behr to Sohal & Co. was incorrect." The chief executive's letter went on to say that the letter of September 4 reproduced in Big Egos Small Men was not identical to the copy they held. The layout differs from their copy. "For instance the figure '4th' which appears at the end of the first line in the book appears on our copy of the original on the second line." Morison also attached a copy of a letter dated September 4, 2000 issued and he ld by the General Council of the Bar. This was identical, word for word and comma for comma, with the document in Jethmalani's book. The only difference was that in the copy used in Jethmalani's book, the figure '4th' appeared in the first line itself in stead of at the beginning of the second line, without any difference in the content of the sentence.

On November 23, Jethmalani held a press conference at which he released a letter dated November 2, written by Jonathan Hirst, Chairman of the General Council of the Bar, to Justice Anand in response to Justice Anand's letter to him dated October 25. Jeth lamani expressed surprise that while Salve had placed before the court the letter of November 20, of the Chief Executive of the General Council of the Bar, he had suppressed this letter of the Chairman of the General Council, which contained the followin g statements.

1. The General Council of the Bar of England had received records from information provided by the Inns of Court on forms completed by those applying for student membership of the Inns.

2. These records had been scanned (to preserve a facsimile copy of the record) on to an electronic database at the General Council, two to three years ago.

3. Having examined the scanned image relating to Justice Anand's record closely, it appeared to the Chairman that the year of birth was recorded as 1934, when the record card was completed in 1962.

4. A copy of the scanned record was enclosed as requested.

Jethmalani went on to say: "In these circumstances, for the Solicitor-General to suppress this vital document from the court and produce the 'Certificate' of the so-called 'Chief Executive' of the General Council and seek to cast a doubt on the very auth enticity of the original document dated 4th September, 2000 issued by Examiner of Records, Mr. Behr, is unpardonable.

"It is obvious that insidious attempts are being made to suppress the document existing in the records of the General Council and confuse this issue on the basis of suspicious certificates obtained from some 'Chief Executive'. This far from helping to re solve the issue only accentuates the suspicion.

"Unless there is some explanation of how and why the CJI declared his year of birth as 1934 in the form which was sent to the General Council of the Bar, this matter will continue to agitate the minds of the people of this country. The only way to set th ese doubts to rest would be a thorough investigation into the matter."

Jethmalani also released a letter to Salve in which he suggested that Salve issued a left-handed compliment for having gone all the way to the U.K. to investigate the issue of the age of the Chief Justice, which had made him an investigator and a materia l witness in the matter and open to cross-examination. Jethmalani asked Salve to assist the cause of truth and justice by getting from the Chief Justice a copy of his scanned record, which was sent by the General Council of the Bar and which showed his y ear of birth to be 1934.

On November 27, when the contempt proceedings were heard again, Salve handed over another compilation, which contained the letter of November 2, of the Chairman of the General Council of the Bar addressed to the Chief Justice, as well as Jethmalani's let ter to him. Although the court adjourned the hearing of the proceedings against Sundaram to the next day, the Judges, K.T. Thomas and R.P. Sethi, proceeded to pass an order directing a Central Bureau of Investigation (CBI) probe into the genuineness of t he letter of the General Council of the Bar of September 4, and to trace out the person responsible for creating it. The court observed: "On a perusal of the documents produced by the learned Solicitor-General of India, we feel, prima facie, that the document purported to have been sent by the General Council of the Bar, London, dated 4.9.2000 under the name of S. Behr to Sohal & Co., is not a genuine document." The Judges added that the "question of age of Shri Adarsh Sein Anand has been decided by the President of India as per order dated 15.5.1991. In view of Article 217(3) of the Constitution of India the President of India is the only authority having jurisdiction to decide that question. Hence the finality attained on that question is a re ality."

While directing the CBI to investigate into the genuineness of the document dated September 4, the court clarified that "the CBI is not to go into the question of the age of Dr. Justice Adarsh Sein Anand, whose age was determined by the President even wh ile he was a Judge of the High Court."

The next day, Jethmalani filed an intervention application in the matter with the grievance that the court in its order of November 27, had recorded a prima facie finding that the document dated September 4 of the General Council of the Bar annexe d to his book was not a genuine document. Jethmalani's grievance was that such an aspersion cast a reflection on his reputation and that this was done by the court without even issuing a notice or giving him any hearing in the matter. He pointed out that if a hearing had been granted to him, he would have demonstrated conclusively that the document was not only genuine but its authenticity had been affirmed by the General Council of the Bar to the Chief Justice himself in a letter of the Chairman dated November 2, 2000. He said that even the copy of the document issued by the Bar Council, which had been attached to the letter of the Chief Executive of the Bar Council dated November 20, was identical word for word with the one produced in the book. Poin ting out that the court had ordered the investigation by the CBI in complete violation of the mandatory sections of the Code of Criminal Procedure, he said that Salve had again withheld from the court the annexure to the letter of the Chairman of the Gen eral Council of the Bar dated November 2 to the Chief Justice, which was a scanned image of the Chief Justice's record, which showed his year of birth to be 1934. Jethmalani submitted that the dispute about the age of a Judge of the Supreme Court was to be resolved by a procedure created by Parliament under Article 124 (2A) of the Constitution. The earlier determination under Article 217 might have some evidentiary value but would not be conclusive. These executive orders, Jethmalani contended, were pas sed by evidence then available and could be made again if fresh evidence became available. Also, the issue of the Chief Justice's age could not be determined in a contempt proceeding; it could only be decided in an appropriate proceeding for that purpose .

The court, however, refused to hear Jethmalani's application on the ground that it should be filed in the Registry and come up for hearing before the court in due course. The hearing of the contempt application against Sundaram, however, had to be adjour ned to December 6 on account of Sundaram collapsing in court with his blood pressure shooting up abnormally.

WHATEVER be the ultimate fate of the contempt proceedings against Sundaram and whatever be the orders passed in Jethmalani's intervention application, a few things must be said about the extraordinary order passed by the court on November 27.

It is noteworthy that the court records in its order a prima facie finding that the document dated September 4 issued by the General Council of the Bar was not a genuine document. This is so since the only document dated September 4 before the cou rt was the document annexed to the letter of September 20 of the Chief Executive of the General Council of the Bar addressed to Salve. This letter itself affirms that the annexed document written by Behr dated September 4 was the copy of the original hel d by the General Council. How then could the court say that this document did not appear to be genuine? Moreover, the letter of the Chairman of the Bar dated November 2 to the Chief Justice also unambiguously confirms the authenticity of Behr's letter da ted September 4 and also confirms that Behr had correctly stated that the year of birth recorded in Justice Anand's record card completed in 1962 was in fact 1934.

What is surprising is that the court ordered a CBI investigation into the genuineness and authorship of the document whose genuineness and authorship had been affirmed repeatedly by the General Council of the Bar, which had issued this document to Sohal & Co.

But there is something even more noteworthy about the court's order of November 27. The court goes on to record that the question of the age of Justice Anand was finally determined by the President in 1991 and that that determination had become final and could not be reopened and, therefore, the court specifically barred the CBI from making any investigation into the question. Apart from the fact that there was no inquiry made into the issue of the age of Justice Anand even in 1991 when the order of the President was that no such inquiry is necessary, it is an unstatable proposition that once such determination had been made, on the basis of some material or evidence at one point of time, it bars any further inquiry or investigation or determination at a later point of time when fresh material becomes available, and which casts some doubt on the declared age of a Judge. How can a determination on a frivolous application made on no evidence bar an investigation when new material becomes subsequently av ailable?

Moreover, was the court justified in making such an order in a case arising out of a contempt proceeding against Sundaram, which was initiated because of a highly objectionable telegram sent to the Chief Justice? Will the court wait for the outcome of th e CBI investigation before deciding whether Sundaram's telegram amounted to contempt?

After Jethmalani's book was released, several documents have mysteriously surfaced in certain sections of the media, which if authentic establish that his official date of birth is correct. These include his matriculation certificate of 1951, which he ha d declared as misplaced when he got enrolled in the Delhi Bar Council in 1964. But while from these documents his official date of birth does appear to be correct, the manner in which certain documents are being selectively suppressed and others released , and the unusual manner in which the Supreme Court has been handling the contempt matter, have only served to accentuate public misgivings about the whole matter. The whole controversy has certainly not enhanced the reputation of the judiciary.

Prashant Bhushan is a lawyer practising in the Supreme Court of India.